All these — and more — arguments were made as recently as 2016, when the

constitutionality of criminal defamation was challenged before a two-judge bench

of the Supreme Court. Unfortunately, however, they were largely ignored by (the
then) Justice Dipak Misra, who simply held that Section 499 was constitutional, as
it protected individual reputation. The disproportionality of criminalising what is
essentially a civil wrong, and the numerous ways in which the specific structure of
Indian criminal defamation law chills and suffocates free expression, was not
considered by the court.

It is the courts that must now confront these questions. And the courts now
have a fresh opportunity: this is no longer about an abstract challenging to
the constitutionality of criminal defamation, but a live issue about the
relationship between our legal system and a social movement aimed at
publicly redressing long-standing injustices.

More than 50 years ago, courts in another country were faced with this
challenge. In the 1960s, the American civil rights movement found itself
under siege: States in the deep south not only violently reacted to the
movement, but also filed defamation claims against newspapers, to stop
them from covering it. Small factual errors in reports were picked up, and
massive defamation suits were filed to harass and bankrupt reporters and
newspapers. The New York Times, for example, was found liable for the
crippling sum of $50,000, for its coverage of a civil rights protest in
Montgomery, Alabama. When these defamation verdicts were challenged
before the Supreme Court, therefore, no less than the fate of the civil rights
movement was in its hands.

The U.S. Supreme Court responded. In one of the most famous judgments
in its history, New York Times Co. v. Sullivan (1964), it substantially
modified defamation law to ensure that it could no longer be used as a tool
of harassment and blackmail. Articulating a very high threshold of “actual
malice”, the court ensured that journalists could go about their job without
fear, as long as they did not intentionally or recklessly make outright false
statements. Nothing less than this, the court held, was required by the
constitutional right to freedom of expression, and a free press.

In 2018, our courts are now faced with a similar situation: a vitally
important public movement is threatened by the heavy hand of the law of
 defamation. And, like the American courts at the time of the civil rights
movement, our courts too have a golden opportunity. They may, for one,
choose to revisit the constitutionality of criminal defamation. But even
without that, there are enough ways to judicially interpret Section 499 to
ensure that it no longer remains the tool of the powerful to blackmail,
harass, and silence inconvenient speech. Incorporating the Sullivan
standard into the law might be a start; but the interpretive possibilities are
endless. All that we need is for the courts to understand what is at stake,
and respond with the courage and the sensitivity that these times demand
of them.

Way forward

India is in the company of Pakistan, Bangladesh, Turkey, and South

American dictatorships in continuing with criminal defamation. In
2016, Zimbabwe, which inherited the same British colonial legacy as
India, also declared criminal defamation unconstitutional.

In keeping the law in our books, we risk Indian politicians taking a

cue from Turkish president Recep Tayyip Erdoğan,
who filed defamation cases against multiple individuals for calling
him a “lightbulb”.

Despite the apex court’s verdict in 2016, it is worth making yet

another attempt to decriminalise criminal defamation.

The Supreme Court while scrapping Section 377 also declared that

colonial laws will not automatically be presumed valid and
constitutional. This helped the court to decriminalise adultery.
Sections 499 and 500 of the Indian Penal Code, which define and
impose jail term for criminal defamation, fall under that category.

MP Tathagata Sathpathy had introduced a private member’s bill in

Parliament last year to repeal criminal defamation.
Criminal defamation is nothing but legal scare tactics, and it is
#TimesUp for this colonial law as well.

t is not their shame anymore. What autumn of 2018 has shown India
is that women are no longer on trial, for their clothes, walk,
behaviour, or for who they are. Priya Ramani is not on trial. It is the
men who are on trial